As the season for art fairs in Miami approaches, owners of commercial and residential buildings may wish to temporarily display artists' works on their spaces to promote those art fairs or even their own spaces. Expectations regarding the display of those works of art may differ between the space owners and the artists that create the works. Unfortunately, sometimes differing expectations may lead to litigation and parties incurring attorney fees and costs.

Pop-up art displays and murals will likely cover certain parts of Miami-Dade County as we enter into Miami's “winter” months. Frequently, visiting and resident artists will prepare new, temporary works of art on the outside of buildings, including street graffiti murals on the façade of repositioned warehouses, especially in areas like Wynwood. Owners and landlords would be well served to understand their rights associated with allowing artists to use their spaces ahead of time. Once given a choice location to display their art, an artist may not take kindly to attempts to remove that art. Once the art is on the property, there could be repercussions to removing the art or even from profiting from having the art on the space. Artists may seek to protect their rights under copyright law, contract law, and through other claims. How long a work stays on display, how well-known the work is or becomes, and how visible the work is are just some of the factors that may impact the risk of such claims.

One law that might give rise to a claim is The Visual Artists Rights Act of 1990 (17 U.S.C. 106A) (VARA). VARA sets forth protections for the rights of artists under certain circumstances. VARA may allow artists to seek monetary damages if a work is distorted, mutilated or modified.

A recent case may cause new claims related to works under VARA. In the case Cohen v. G&M Realty, No. 13-CV-05612(FB)(RLM), (E.D.N.Y. Feb. 12, 2018), the plaintiff artists sued to prevent the defendants from demolishing buildings that had the plaintiffs' paintings on the walls of the buildings. The defendants argued, among other things, that the plaintiffs' work was ephemeral and that they knew the buildings would be torn down and that therefore there was no protection for temporary works under VARA. The court found that there was no legal support for the proposition that temporary works are not protected by VARA. The court stated that “VARA resolves the tension between the building owners' rights and the artists' rights through § 113(d), not by excluding temporary works from protection.” The court stated that “Section 113(d)(2), specifying that artists are entitled to 90 days' written notice to allow them to salvage their removable works, contemplates that such works may be temporarily on the side of a building.” The court found that VARA afforded the plaintiffs protection for their temporary works even though the plaintiffs allegedly knew that they would be removed when the building came down. The court stated that “Section 113(d)(1) specifies that an unremovable work incorporated in a building is protected by VARA unless the artist waives his or her rights in a writing signed by both the artist and the building owner.” The court found that, among things, because VARA contemplated temporary works, and that only a narrow category of temporary works was excluded, damages totaling $6.75 millions were appropriate.

With potentially multimillion-dollar damages on the line related to the removal of works of art, owners should take steps to mitigate the risk of a dispute regarding any art they chose to display on their spaces ahead of the approaching art season. These steps may include such things as:

• Consulting with counsel prior to entering into a relationship to display art on your space;
• Communicating with the artists regarding the expectations as to the display of the art;
• Communicating with the artists regarding the uses of the art;
• Communicating with the artists regarding any potential costs associated with the art; and
• Memorializing understandings regarding the display of art.

While the above steps are not a complete list, the above steps may mitigate the risk of a dispute and the risk of damages down the road.

Steven D. Weber is founding shareholder of Weber Law, P.A., in Miami. The firm represents developers, owners, landlords, tenants, and individuals in a variety of real estate-related disputes.